Corkery v. Love

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In the Matter of:

SHAYLA CORKERY, Petitioner/Appellee,

v.

AARON C. LOVE, Respondent/Appellant.

No. 1 CA-CV 15-0776 FC
FILED 7-21-2016

Appeal from the Superior Court in Yavapai County
No. P1300DO201300669
The Honorable Patricia A. Trebesch, Judge

AFFIRMED

COUNSEL

Law Offices of Robert L. Fruge PC, Prescott
By Robert L. Fruge
Counsel for Petitioner/Appellee

Jeffrey M. Zurbriggen PC, Phoenix
By Jeffrey M. Zurbriggen
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Maurice Portley joined.

N O R R I S, Judge:

¶1 Appellant/respondent Aaron C. Love appeals from the
superior court’s order awarding appellee/petitioner Shayla Corkery care of
their child and resolving the parties’ dispute over legal decision-making
and parenting time. For the following reasons, we affirm the order entered
by the superior court.

FACTS AND PROCEDURAL BACKGROUND

¶2 As relevant to this appeal, Corkery petitioned the superior
court concerning care, legal decision-making, and parenting time regarding
their child.

¶3 Following trial, the superior court granted Corkery care of
their child, awarded the parties joint legal decision-making, and granted
Love limited parenting time. For the first 120 days following entry of its
order, the court’s order required Love to submit to regular random drug
testing and to satisfy other conditions before he could exercise any
parenting time. After 120 days, the court’s order increased Love’s
parenting time and terminated the supervision requirement contingent on
his drug testing.

DISCUSSION

I. Judicial Notice

¶4 In its order, the superior court acknowledged it had taken
judicial notice of evidence presented in a different proceeding involving
Love and his former wife, A.P., that addressed legal decision-making and
parenting time for their minor children (the “A.P. case”). The superior
court entered judgment in the A.P. case approximately one month before
trial in this case.

¶5 On appeal, Love argues the superior court should not have
taken judicial notice “of all evidence from the [A.P.] case because it was an
inappropriate use of judicial notice.” Corkery argues, however, that Love

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waived this argument for purposes of appeal because he failed to object at
trial to the court taking judicial notice of the evidence in the A.P. case. We
agree with Corkery.

¶6 Before trial, Love listed Corkery’s testimony in the A.P. case
in his pretrial list of witnesses and exhibits. At the start of trial, Corkery’s
attorney asked the court to take judicial notice of the evidence and findings
of fact from the A.P. case. The court then expressly asked Love, who was
representing himself, if he objected to the court taking judicial notice as
Corkery’s counsel had requested. In response, Love raised no objection,
and instead told the court, “I don’t believe so.”

¶7 Failure to object to evidence, testimony, or argument in the
superior court waives those matters on appeal. State v. Thomas, 130 Ariz.
432, 435, 636 P.2d 1214, 1217 (1981). Because Love raised no objection and
instead advised the court that he had no objection to the court taking
judicial notice, and even listed Corkery’s testimony in the A.P. case in his
pretrial list of witnesses and exhibits, he has waived this argument on
appeal. Accordingly, we will not address it.1

II. Doctors’ Reports

¶8 Love next argues the superior court should have admitted
into evidence three reports relating to his mental health, which, he asserts,
would have “refuted the assumptions contained in the judicial notice”
taken by the court. We reject this argument.

¶9 At trial, Love offered into evidence “reports” prepared by
three psychiatrists who evaluated his fitness to practice medicine.
Corkery’s attorney objected to the admission of the reports, asserting Love
had failed to timely disclose them. The superior court admitted the reports
for the limited purpose of determining “what impediments there are to
[Love’s] ability to work.”

1Love also appears to argue that in taking judicial notice of the
evidence in the A.P. case, the superior court failed to consider the child’s
best interests in resolving the parties’ dispute over legal decision-making.
We reject this argument. In its ruling, the superior court explained that it
addressed “each matter separately” and considered “the best interest of the
children involved, discretely, as they are uniquely situated.” The court’s
findings reflect that it considered the best interests of the child.

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¶10 Under the Arizona Rule of Family Law Procedure 49, parties
must disclose expert witnesses at least 60 days before trial. Ariz. R. Fam.
Law P. 49(H). Rule 65(C) prevents a party from using evidence at trial that
was not timely disclosed:

A party who fails to timely disclose information
required by Rule 49 or 50 shall not, unless such
failure is harmless, be permitted to use as
evidence at trial, at a hearing, or in support of a
motion, the information or the testimony of a
witness not disclosed, except by leave of court
for good cause shown.

¶11 The superior court did not abuse its discretion in admitting
the doctors’ reports for the limited purpose of assessing Love’s ability to
practice medicine. Marquez v. Ortega, 231 Ariz. 437, 441, ¶ 14, 296 P.3d 100,
104 (App. 2013) (appellate court reviews superior court’s rulings on
disclosure and discovery for abuse of discretion). Love did not disclose the
doctors as expert witnesses or list their reports in his pretrial list of
witnesses and exhibits. Rather, Love waited until the week before trial to
disclose the reports to Corkery.2 Admission of the untimely disclosed
reports could have prejudiced Corkery, who had no opportunity to depose
the doctors or develop her own evidence in response to the reports.

¶12 Citing Hays v. Gama, 205 Ariz. 99, 67 P.3d 695 (2003), Love
nevertheless argues the superior court should have considered the doctors’
reports in determining the best interests of the child. Hays is
distinguishable. In Hays, the superior court precluded evidence from a
child’s therapeutic counselor in a contested child custody proceeding. 205
Ariz. at 101, ¶¶ 9-10, 67 P.3d at 697. The court precluded the evidence as
contempt sanctions because the child’s mother had violated certain orders
of the court. Id. The Arizona Supreme Court vacated the sanctions,
explaining, first, the superior court had not imposed the sanctions as a
punishment for a discovery violation, id. at 101, ¶ 14, 67 P.3d at 697, and
second, excluding the evidence would “effectively preclude potentially
significant information from being considered in the custody
determination.” Id. at 103-04, ¶ 22, 67 P.3d at 699-700. In contrast to Hays,
here the superior court’s decision to exclude the untimely disclosed reports
was authorized by Rule 65(C), and the reports concerned Love’s ability to

2The reports were dated April 14, 2015, June 11, 2015, and July
2, 2015. Trial was held on September 1, 2015.

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practice medicine and did not have an “especially significant effect” on the
court’s ability to determine the child’s best interests. Id.

¶13 Accordingly, we affirm the superior court’s decision to admit
the doctors’ reports for the limited purpose of assessing Love’s ability to
practice medicine.

III. Parenting Time

¶14 Love also argues the superior court should not have restricted
his parenting time, asserting that a court may not restrict parenting time
under Arizona law unless it finds the parenting time would seriously
endanger the child’s physical, mental, moral or emotional health.

¶15 On this record, the superior court did not abuse its discretion
in restricting Love’s parenting time. See Nold v. Nold, 232 Ariz. 270, 273, ¶
11, 304 P.3d 1093, 1096 (App. 2013) (appellate court reviews superior court
parenting time decisions for abuse of discretion). Based on the evidence
before it, the court found that Love’s “history of substance use [has] serious
implications in his personal, legal and professional life” and “a substantial
change in circumstances will be necessary” to “persuade the Court that
Love does not pose a risk to this child.” The superior court concluded that
Love “must first demonstrate stability and sobriety before the Court can be
persuaded that parenting time will not endanger the physical, mental or
emotional health of the Child.”3 We defer to the superior court’s findings
because it is in “the best position to judge the credibility of witnesses and
resolve conflicting evidence.” Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 18, 357
P.3d 834, 839 (App. 2015).

CONCLUSION

¶16 For the foregoing reasons, we affirm the superior court’s
order. In the exercise of our discretion, we grant Corkery’s request for
attorneys’ fees on appeal pursuant to Arizona Revised Statutes (“A.R.S.”)
section 25-324 contingent upon her compliance with Arizona Rule of Civil

3The court restricted Love’s parenting time to supervised
visits twice per month, contingent on drug testing, for the first 60 days. For
the next 60 days, the court ordered supervised visits four times per month,
again contingent on Love’s drug testing and compliance with other
requirements. Thereafter, if Love continued to satisfy the drug testing and
other requirements, he would become entitled to increased and
unsupervised parenting time with the child.

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Appellate Procedure 21. And, as the successful party on appeal, we also
award Corkery costs on appeal, also contingent upon her compliance with
Rule 21.

:AA

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